Guidance for employers on the latest COVID-19 developments
With daily cases topping 200,000 for the first time, the festive period has been a busy time for developments around COVID-19.Read more
In response to this, Ofsted carried out a research programme into teacher stress, workload and well-being in 2019.
This programme of course predated the COVID-19 pandemic, however, the findings and recommendations of the programme still ring true and contain some key learning points for schools looking to ensure that they are dealing with long term absence for these reasons sympathetically and efficiently.
It is important where an employee is on long term sick leave that you remain proactive and deal with sickness absence promptly. All too often employers do not engage with employees on long term sick leave, which can result in the employee feeling forgotten and can make a return to work more difficult. It is essential that you maintain regular contact with the employee unless the medical evidence suggests otherwise. Ideally, a nominated point of contact should be confirmed.
In taking steps to deal with the absence, you should of course be mindful of any applicable sickness or absence procedures and relevant provisions in the employee’s contract of employment. Your absence policy should provide you with guidance as to the various stages of the process and when you should be obtaining medical evidence, or referring the employee to occupational health. It is often helpful to remind the employee of the process and the various stages within this so that they understand why they are being asked certain questions.
You should always keep a detailed written record of conversations, meetings and considerations that have been taken into account during the process. These should be made at the time of or as soon as possible after the event. It may be important to justify these at a later date, so by ensuring that you have clear notes from the beginning of the process you will be in a much better position should the employee later make allegations about why certain decisions were made.
You should always bear in mind that medical conditions which give rise to long term absence have a higher risk of being deemed disabilities. One of the biggest considerations here is whether there are any reasonable adjustments that could enable the employee to return to work in some capacity in the foreseeable future. If you fail to consider this, you risk breaching the duty to make reasonable adjustments under the Equality Act 2010. It is important to note that the responsibility is not on the employee to suggest adjustments, but for the employer to consider them. Occupation health referrals can be very useful in determining the adjustments that could be made. Employers should also be mindful of other potential disability-related discrimination claims.
Although capability is a potentially fair reason for dismissal, it is important that a fair procedure is followed and all alternatives to dismissal considered to avoid a finding of unfair dismissal.
Bear in mind that in most cases, it will be an unfair dismissal if an employee is dismissed whilst still entitled to or in receipt of company sick pay. Equally, permanent health insurance schemes and ill health retirement may also prove a bar to dismissal due to capability. Therefore, it is extremely important to ensure that you are following your absence policy when dealing with long term absence and not taking any decisions prematurely.
For further detailed advice on dealing with long-term absences or any other employment law related issues, please contact our Employment law experts on 01332 226 149 or complete the form below.
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